Citation Nr: 0722628
Decision Date: 07/25/07 Archive Date: 08/02/07
DOCKET NO. 04-09 853 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUES
1. Entitlement to service connection for gastritis,
gastroesophageal reflux and Barrett's esophagus.
2. Entitlement to a rating in excess of 20 percent for
residuals of a post-operative ruptured duodenal ulcer.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
G.A. Wasik, Counsel
INTRODUCTION
The veteran had active duty service from September 1965 to
July 1968.
This matter comes before the Board of Veterans' Appeals
(Board) on appeals from rating decisions by a Regional Office
(RO) of the Department of Veterans Affairs (VA). The veteran
testified at a Board videoconference hearing in April 2007.
The issue of entitlement to service connection for gastritis,
gastroesophageal reflux and Barrett's esophagus is addressed
in the REMAND portion of the decision below and is REMANDED
to the RO via the Appeals Management Center (AMC), in
Washington, DC. VA will inform the veteran if any further
action is required on his part.
FINDING OF FACT
The service-connected residuals of the post-operative
ruptured duodenal ulcer are manifested by pain but without
weight loss, anemia, incapacitating episodes four or more
times per year, or hematemesis or melena.
CONCLUSION OF LAW
The criteria for a rating in excess of 20 percent for
residuals of the post-operative ruptured duodenal ulcer have
not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38
C.F.R. §§ 4.7, 4.114, Diagnostic Code 7305 (2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA) and
implementing regulations set forth certain notice and
assistance provisions. 38 U.S.C.A. §§ 5102, 5103, 5103A,
5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). After
reviewing the claims folder, the Board finds that the
appellant has been notified of the applicable laws and
regulations which set forth the criteria for entitlement to
VA benefits. Specifically, the discussions in August 2002
and June 2006 VCAA letters have informed the appellant of the
information and evidence necessary to warrant entitlement to
the benefit sought and the responsibilities of the veteran
and VA in obtaining the evidence. See Quartuccio v.
Principi, 16 Vet. App. 183 (2002).
The Board also notes that the June 2006 VCAA letter expressly
notified the appellant that he should submit any pertinent
evidence in his possession. The requirements of 38 C.F.R. §
3.159(b)(1) have been met. The Board finds that all notices
required by VCAA and implementing regulations were furnished
to the appellant and that no useful purpose would be served
by delaying appellate review of the issue decided herein to
send out additional VCAA notice letters.
In this case, the RO's decision came before complete
notification of the veteran's rights under the VCAA. It is
arguable that the VCAA notice was not timely. See
Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board
finds, however, that any defect with respect to the timing of
the VCAA notice in this case was harmless error for the
reasons specified below. Subsequent to the rating decision
on appeal, the RO did provide notice to the claimant
regarding what information and evidence was needed to
substantiate the claim and the veteran has had the chance to
submit evidence in response to the VCAA letters. Under these
circumstances, the Board finds that all notification and
development action needed to render a fair decision on the
claim decided herein has been accomplished and that
adjudication of the claim, without directing or accomplishing
any additional notification and/or development action, poses
no risk of prejudice to the appellant. See, e.g., Bernard v.
Brown, 4 Vet. App. 384, 394 (1993).
During the pendency of this appeal, the United States Court
of Appeals for Veterans Claims (Court) issued a decision in
the consolidated appeal of Dingess/Hartman v. Nicholson, 19
Vet. App. 473 (2006), which held that the VCAA notice
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. §
3.159(b) apply to all five elements of a service connection
claim. Those five elements include: (1) veteran status; (2)
existence of a disability; (3) a connection between the
veteran's service and the disability; (4) degree of
disability; and (5) effective date of the disability. The
Court held that upon receipt of an application for a service-
connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b) require VA to review the information and the
evidence presented with the claim and to provide the claimant
with notice of what information and evidence not previously
provided, if any, will assist in substantiating or is
necessary to substantiate the elements of the claim as
reasonably contemplated by the application. See
Dingess/Hartman, supra.
In the present appeal, the appellant was provided with notice
of what type of information and evidence was needed to
substantiate the claim in the August 2002 and June 2006 VCAA
letters and was provided with notice of the types of evidence
necessary to establish any disability rating and/or the
effective date via correspondence dated in June 2006 and
March 2007. The appellant's status as a veteran has never
been at issue.
All the VCAA requires is that the duty to notify is
satisfied, and that claimants are given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished, all due process concerns
have been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also
38 C.F.R. § 20.1102 (harmless error).
Furthermore, the Board finds that there has been compliance
with the assistance provisions set forth in the new law and
regulations. The record demonstrates that all VA and private
records identified by the veteran have been obtained to the
extent possible. The veteran has been afforded appropriate
VA examinations. The Board finds the requirements of
38 C.F.R. § 3.159(c)(4) have been met. No additional
pertinent evidence has been identified by the appellant as
relevant to the issue on appeal decided herein. Under the
circumstances of this particular case, no further action is
necessary to assist the appellant.
Criteria
The veteran's claim for an increased rating was received in
June 2001.
Disability evaluations are determined by evaluating the
extent to which the veteran's service-connected disabilities
affect the ability to function under the ordinary conditions
of daily life, including employment, by comparing the
symptomatology with the criteria set forth in the VA Schedule
for Rating Disabilities (Rating Schedule). See 38 U.S.C.A. §
1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to
compensation has already been established and an increase in
the disability rating is at issue, it is the present level of
disability that is of primary concern. See Francisco v.
Brown, 7 Vet. App. 55, 58 (1994).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
Ulcers are rated as a digestive disorder under 38 C.F.R. §
4.114. Under Diagnostic Code 7305, for duodenal ulcers, a 10
percent rating is assigned for a mild duodenal ulcer with
recurrent symptoms once or twice yearly; a 20 percent rating
is assigned for moderate symptoms, with recurring episodes of
severe symptoms two to three times per year and averaging 10
days in duration, or with continuous moderate manifestations.
A 40 percent evaluation requires a moderately severe ulcer
with less than severe symptoms, but with impairment of health
manifested by anemia and weight loss or recurrent
incapacitating episodes averaging 10 days or more in duration
at last four or more times a year. A 60 percent evaluation
requires a severe duodenal ulcer with pain that is only
partially relieved by standard ulcer therapy, periodic
vomiting, recurrent hematemesis or melena, and manifestations
of anemia and weight loss, productive of definite impairment
of health. See 38 C.F.R. § 4.114, Diagnostic Code 7305.
During the appeal period, some portions of 38 C.F.R. § 4.114
were revised; however, Diagnostic Code 7305 remained
essentially unchanged. Thus, there is no basis on which to
do a separate analysis of both old and new rating criteria.
See 66 Fed. Reg. 29,488 (May 31, 2001); see also "EFFECTIVE
DATE NOTE" following 38 C.F.R. § 4.114, Diagnostic Code 7354.
Analysis
The Board finds that the preponderance of the competent
evidence is against a finding that the veteran currently
experiences anemia. While the veteran's representative
testified before the undersigned in April 2007 that VA
medical records document the presence of anemia, the Board
was unable to find any such documentation. At the time of a
September 2002 VA examination, it was noted that the veteran
did not show any signs of anemia but lab work did reveal a
persistent slight elevation in "MCH." Significantly,
anemia was not diagnosed. There was no indication that
anemia was present at the time of the most recent VA
examination which was conducted in April 2006. The VA and
private clinical records do not document the presence of
anemia.
The Board notes the clinical evidence of record demonstrates
that the veteran did experience a drop in weight during the
appeal period. In October 1999, the veteran's weight was
recorded as being 184. A June 2000 clinical record indicates
that the veteran's weight at that time was 193. As of March
2001, the veteran's weight had dropped to 159. This loss in
weight, however, was apparently due to a cerebral vascular
accident (CVA) which occurred the same year. A March 2001 VA
clinical record includes the annotation that the veteran had
lost 20 pounds since the "cva." On VA examination in
September 2002, it was noted that the veteran had lost 30
pounds since a stroke which occurred 18 months prior.
Subsequent to the stroke, the veteran's weight slowly
returned to his pre-stroke level. In March 2001, weight was
155; in August 2002, it was 164; in April 2003 the veteran
weighed 169; in October 2003 weight was 173; in March 2003
weight was 183; in January 2005 it was 184; in August 2005 it
was 190; and in November 2005, the veteran's weight was 192.
At the time of the April 2006 VA examination, the veteran's
weight was recorded as 192. In November 2006, the veteran
weighed 192. The most recent evidence of record, in the form
of the veteran's testimony before the undersigned in April
2007, was that the veteran weighed 192. The Board finds the
evidence of record demonstrates that the veteran did
experience a drop in weight but there is no indication that
such drop was attributed in any way to the service-connected
residuals of the duodenal ulcer. The drop in weight was
apparently due to a stroke the veteran had in 2001. The most
recent evidence of record indicates that the veteran's weight
was back up to the level it was at prior to the stroke. As
set out above, where entitlement to compensation has already
been established and an increase in the disability rating is
at issue, it is the present level of disability that is of
primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58
(1994). In the current case, the evidence of record
indicates that the veteran's weight dropped for a period of
time but currently is at the same level it was at prior to
the time the veteran filed his request for an increased
rating. There is no competent evidence of record which
demonstrates that the veteran experienced a permanent weight
loss due to his service-connected residuals of a duodenal
ulcer.
There is no competent evidence of record indicating that the
service-connected residuals of the duodenal ulcer were
manifested by incapacitating episodes 10 days or more in
duration at least four or more times a year. The most recent
evidence of record in the form of the veteran's testimony
before the undersigned in April 2007 indicates that the
veteran experienced one to two incapacitating episodes per
year which lasted approximately one week. The Board notes
the allegations of incapacitating episodes has not been
objectively confirmed. The Board finds that, even if it is
conceded that the veteran experiences two incapacitating
episodes per year, this falls well short of the requirement
for a 40 percent evaluation under Diagnostic Code 7305 which
is four or more episodes per year, each of which lasted 10 or
more days.
There is no competent evidence of record demonstrating that
the service-connected disability is manifested by any
hematemesis or melena. The clinical records are devoid of
any annotations indicating the presence of such
symptomatology. At the time of a September 2002 VA
examination, the veteran denied vomiting, hematemesis or
melena. At the time of the most recent VA examination which
was conducted in April 2006, it was specifically noted that
the veteran did not have hematemesis or melena.
The VA clinical records, private clinical records and reports
of VA examinations indicate that the primary complaint
associated with the service-connected disability is of pain.
While pain is one of the requirements for a rating in excess
of 20 percent, the symptomatology associated with the
service-connected disability does not meet any of the other
requirements for a rating in excess of 20 percent. The
preponderance of the evidence is against a finding that the
service-connected disability is manifested by weight loss,
hematemesis, melena, anemia, or recurrent incapacitating
episodes averaging 10 or more days in duration at least four
or more times per year. The Board finds the symptomatology
associated with the service-connected disability more nearly
approximates a 20 percent evaluation under Diagnostic Code
7305.
The Board further notes that the veteran experiences
gastrointestinal symptomatology but this has been attributed
to non-service connected disabilities including
gastroesophageal reflux. At the time of an April 2006 VA
examination, the veteran reported that he had episodes of
severe heartburn but rarely vomited. It was noted that the
veteran had symptoms of reflux which were far more severe in
the last 20 years than the symptoms of ulcer disease. The
pertinent diagnosis was long standing peptic ulcer disease
status post patching of the perforated duodenal ulcer in
1969.
ORDER
Entitlement to a rating in excess of 20 percent for residuals
of a post-operative ruptured duodenal ulcer is not warranted.
The appeal is denied.
REMAND
At the time of the April 2007 videoconference hearing, the
veteran testified that he had been informed by a private
physician, Dr. R.H., that the currently existing gastritis,
gastroesophageal reflux and Barrett's esophagus were related
to, caused by or worsened by the service-connected ulcer
disease. This is the first time that VA has been informed of
the potential existence of this evidence. As this evidence
reportedly provides a competent link between the currently
existing gastrointestinal disorders and the service-connected
ulcer, the Board finds that attempts must be made to obtain
it.
Accordingly, the case is REMANDED for the following action:
1. Contact the veteran and request that
he obtain from Dr. R.H. a written opinion
as to the etiological relationship, if
any, between the currently existing
gastritis, gastroesophageal reflux and/or
Barrett's esophagus and the service-
connected residuals of a post-operative
ruptured duodenal ulcer.
2. Thereafter, and after completing any
further development determined to be
warranted by the RO or the AMC, the claim
of entitlement to service connection for
gastritis, gastroesophageal reflux and
Barrett's esophagus should be
readjudicated based on all the evidence in
the claims file. If the benefit sought on
appeal is not granted to the veteran's
satisfaction, a supplemental statement of
the case should be issued, and the veteran
and his representative should be afforded
the requisite opportunity to respond
before the claims folder is returned to
the Board for further appellate action.
The appellant and his representative have the right to submit
additional evidence and argument on the matter or matters the
Board has remanded. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
______________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs